Tuzukana v Fo'oka [2023] SBHC 55; HCSI-CC 672 of 2020 (28 July 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Tuzukana v Fo’oka
Citation:
Date of decision:	28 July 2023
Parties:	Mary Rigo Tuzukana & Michael Jon Tuzukana v Robert Fo’oka
Date of hearing:	10 May 2023
Court file number(s):	672 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. Judgment is entered in favour of the Claimants. 2. The Defendants and family members or relatives whether by themselves or their servants or agents or any of them are to vacate the property FTE192-004-91 located at Henderson, Guadalcanal Province and deliver peaceful possession of the land and property to the Claimants within thirty days of this order. 3. The Defendants and family members or relatives whether by themselves or their servants or agents or any of them are permanently prohibited from entering the land FTE192-004-91 from thirty days after this order. 4. The Defendants and family members or relatives whether by themselves or their servants or agents or any of them are permanently restrained from intimidating or threatening the Claimants, their relatives or servants and agents.
Representation:	Mr C Kwana for the Claimant Mr D Nimepo of Ruling
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands (Civil Procedure) Rule 2007, r9.58,r9.64 Land and Titles Act S 229, S 229 (1) Sub S (2), S 224 (1), S 225 (1) (a)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 672 of 2020

BETWEEN

MARY RIGO TUZUKANA & MICHAEL JON TUZUKANA
Claimant

AND:

ROBERT FO’OKA
Defendant

Date of Hearing: 10 May 2022
Date of Ruling: 28 July 2023

Mr C Kwana for the Claimants
Mr D Nimepo for the First and Second Defendants

Lawry; PJ

Ruling

Introduction

1. These proceedings concern land registered as FTE 192-004-91. The Claimants claim that they are the registered owners and the First and Second Defendants have erected buildings on that land and have refused vacate the land.
2. The First and Second Defendant allege they have bought the land in custom and have brought a counter-claim against the Claimants.
3. In the application before the Court the Claimants have applied for summary judgment against the First and Second Defendants.

Certificate of Title

4. The Fixed Terms Estate register shows that a 75 year term was granted to Levers Planation Limited on 31 December 1977. This was part of the process put in place by section 111 of the Constitution, converting perpetual estates into fixed term estates for land held by non-Solomon Islanders.
5. The Certificate of Title provided that no subdivision, lease, sublease, transfer or charge is to be registered without the written consent of the Commissioner of Lands. The Register shows that PTE No 192-004-91 was transferred to Pacific Properties Development Company limited on 16 July 1996. On 1 October 2020 the Application to transfer PTE 192-004-91 was presented, showing a transfer for valuable consideration.
6. On 1 October 2020 the property was transferred to the Claimants.

The purchase

7. Claimants have provided evidence that Mary Rigo Tuzukana and her late husband entered into an agreement to purchase the land in 1999 for the sum of $35000.00. The purchase price was paid in instalments. Those payments were 16 June 1999, 16 July 1999 and $21,000.00 on 7 September 2010. It must also be kept in mind that at the start of the purchase the ethnic tensions plagued Solomon Islands. The transfer could not be completed without the approval of the Commissioner of Lands.
8. The late husband of the Claimant Mary Tuzukana died in 2011. It was not until 2012 that the Claimants appreciated that the transfer had not been completed. Title was still in the name of Pacific Properties Development Company Limited. The Claimants have produced a copy of a letter dated 22 February 2019 addressed to the Commissioner of Lands from Pacific Properties Development Companies Ltd seeking approval to transfer PTE 192-004-91 to the Claimants. The Claimants have also produced a letter dated 8 October 2019 from the Ministry of Lands, Housing and Survey granting consent for FTE 192-004-91 to the Claimants. Finally they have produced the certificate from the land Registry confirming that the transfer lodged on 1 October 2020 was registered on 12 October 2020.
9. There is evidence that the Claimants then have been in possession of the land and have found the First and Second Defendants also on the land and refusing to vacate the land. The Claimants allege the Defendants have been on the property since 2014.

The Defendants’ Claim

10. The First and Second Defendants allege that they have been through a customary purchase arrangement with a director and shareholder of Pacific Properties Development Company Limited.
11. They say they occupied the land in 1999 and that they did so with the Agreement of Pacific Properties Development Company Limited. The First and Second Defendants rely on material set out in and annexed to the sworn statement of Nester Tangirongo filed on 23 July 2021. She says her family and tribe are the original land owners of the property FTE 192-004-91. She says they entered the property in or around 1999 and have occupied the property and developed it since. She says they entered the property through an agreement with John Lee then his daughter Ruby Lee (the daughter of John Lee). She says that John Lee was the sole owner of Pacific Properties developments.
12. In the sworn statement she says that around 2000 they entered into an agreement to purchase the property as the original land owners of the land. She says that on 8 October 2010 the family met with Ruby Lee who permitted them to build on any of four blocks of land they chose and that they build on FTE 192-004-91. She says they have built three executive permanent houses on the property. She says that Pacific Properties Development sold the land to the Claimants in the knowledge that they had entered into an agreement with the family of Nester Tangirongo.
13. Annexed to her sworn statement are minutes of what is said to be a meeting with Ruby Lee on 8 October 2010. The minutes do not refer specifically to FTE 192-004-91, one of the family identified as ‘Freeman’ and by inference that must be Freeman Modoea, sought permission in the following terms how many blocks should be used by tribal members and Ruby Lee (spelt Rubi Lee) is quoted as “4 blocks of your choice”
14. Unusually those minutes are not signed by Ruby Lee. The submission of the area shows there are many more than four blocks. If those are minutes accepted by Ruby Lee, I would have expected her to have endorsed them as she was the person principally affected by any such meeting.
15. A letter was written to Ruby Lee after those proceedings were commenced, on 22 December 2020.

The Application

16. The Claimants have applied for summary judgment against the Defendants. The application is made in reliance on Rule 9.58 of the Solomon Islands Courts (Civil Procedure) Rules 2007. That rule provides:
    • “9.58 A defendant may apply to the court for a summary judgment against the claimant where the defendant has filed a defence and believes that there is no real prospect of any part of the claim succeeding.”
17. Rule 9.64 sets out those matters the Court is required to be satisfied about before such an order is made. Rule 9.64 provides:
    • “9.64 If the court is satisfied that:
    • (a) the defendant has no arguable defence to the claim or part of the claim or that the there is no real prospect of the claim succeeding; and
    • (b) there is no need for a trial of the claim or that part of the claim; the court may:
    • (c) give summary judgment for the applicant; and
    • (d) if the court gives summary judgment for only part of the claim, give leave to defend the balance of the claim; and
    • (e) make any other orders the court thinks appropriate.
18. Rule 9.66 provides:
    • “9.66 The court must not give summary judgment if it is satisfied that there is a real dispute between the parties about a material fact.”

Analysis

19. The only fact that seems to be in dispute is that the Claimants allege the Defendants moved on to the land in 2014 while the Defendants allege it was in 1999. While it is most unlikely to have been 1999 that fact is not material to the outcome of this application.
20. The property could not be transferred to anyone without the approval of the Commissioner of Lands. The Claimants have produced evidence of such approval. The Defendants have not even suggested they have such approval.
21. While the Defendants allege that they were entitled to have any four blocks that belonged to Pacific Properties Development Company Limited there could not have been any meeting of the minds that FTE 192-004-91 could have been one of those blocks. This is because Properties Development Company Limited had already commenced the process for selling that block. The Defendants have not produced anything to show that the intention of both parties was that they could occupy FTE 192-004-91.
22. The Court has considered the issues of fraud and mistake. It is difficult to understand what the fraud or mistake was. The claim that they entered an agreement through custom so they have priority to purchase the land cannot succeed. It cannot do so as they alleged custom purchased was years after the agreement to sell the land to the Claimant and her late husband and after the vendors had received and accepted purchase payments. The Defendants do not seem to have checked whether the parcel FTE 192-004-91 was even available for purchase. There is nothing put before the Court that they confirmed they could move on to FTE 192-004-91but have done so on the basis of the minutes recorded but not endorsed by Ruby Lee.
23. In any event if there was a mistake or fraud and there is no evidence upon which the Court could come to such a conclusion, there is nothing put forward to show that the Claimants had any knowledge at all of any such fraud or mistake. Section 229 of the Land and Titles Act provides:
    • “229.- (1) Subject to subsection (2), the High Court may order rectification of the land register by directing that any registration be cancelled or amended where it is so empowered by this Act, or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.
    • (2) The land register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.”
24. The Claimants have been in possession. They have acquired the property for valuable consideration. There is no evidence that they had knowledge of any omission, fraud or mistake that led to the property being transferred to them as opposed to the Defendants. There is no evidence that they have sought or caused any omission, fraud or mistake nor contributed to it by any act, neglect or default. Any claim for rectification must fail.
25. An issue has been raised about adverse possession. Section 224 of the Land and Titles Act provides:
    • 224-(1) The ownership of an estate or a registered lease may be acquired, subject to Part VII, against the person registered as the owner of the estate or the lease, as the case may be, by peaceable, overt and uninterrupted adverse possession of the land comprised in the estate or lease for a period of twelve years
    • Provided that -
    • (a) the interest acquired in the land by virtue of this section shall be the owner against whom the adverse possession occurs; and
      (b) no person shall so acquire the ownership of any estate or lease in any land vested in or owed by the Commissioner or a local authority.
    • (2). Any person claiming to have acquired an estate or lease by virtue of the provisions of the sib-section (1) may, after having advertised or given notice in such manner as the High Court may direct, apply to High Court for an order that he be registered as the owner thereof.”
26. The Defendants allege that they have been on the land for more than 12 years with the permission of the owner Pacific Properties Development Company Limited. It is clear that Pacific Properties Development Company Limited held title to the property until it was transferred to the Claimants. The issue then is whether the Defendants have been in adverse possession. Section 225(1)(a) of the Land and Titles Act provides:
    • “225.- (1) For the purpose of section 224 –
    • (a) possession of land shall be adverse possession when it is possessed by a person, not being the owner, without the permission of the person lawfully entitled to possession and accordingly possession by a person of land comprised in a lease without the permission of the owner of the lease shall be adverse possession against that owner but not against the owner of estate or lease from whom the owner of the lease derives title;”
27. The case for the Defendant is that they have been in possession of the land with the consent of Pacific Properties Development Company Limited. If they have been in possession that possession has not been adverse as it was with the permission of the person lawfully entitled to possession.
28. The claim by way of prescriptive rights pursuant to section 225 of the Land and Titles Act cannot succeed. It follows that this is one of those cases where the Court is satisfied that the Defendants have filed a defence but there is no prospect of the defence succeeding. The Claimants are entitled to summary judgment.

Orders

1. Judgment is entered in favour of the Claimants.
2. The Defendants and family members or relatives whether by themselves or their servants or agents or any of them are to vacate the property FTE192-004-91 located at Henderson, Guadalcanal Province and deliver peaceful possession of the land and property to the Claimants within thirty days of this order.
3. The Defendants and family members or relatives whether by themselves or their servants or agents or any of them are permanently prohibited from entering the land FTE192-004-91 from thirty days after this order.
4. The Defendants and family members or relatives whether by themselves or their servants or agents or any of them are permanently restrained from intimidating or threatening the Claimants, their relatives or servants and agents.

By the Court
Hon. Justice Howard Lawry
Puisne Judge